PODCASTING & LAW
Seattle University Law School
Colette Vogele
Vogele & Associates
http://www.vogelelaw.com
Fellow, Stanford Law School
Center for Internet and Society
http://cyberlaw.stanford.edu
What is podcasting?
• “iPod” + “broadcasting” (also audioblogging or
videoblogging/“vlogging”) -- a bit misleading.
• Distribution of audio or audio/video
programs
(“podcasts”/“episodes”) automatically over the
Internet through a “publish and subscribe”
model.
• Requires computer, internet connection,
microphone, and software (freely available).
History
•
•
•
One aspect of “social computing”
•
Dave Winer -- RSS software; Adam Curry -popularizing the content of podcasts; many others
(see Wikipedia - controversy)
•
According to Wikipedia, the term “Podcasting” was
first used in February 2004
Technical roots -- 2001 -- blogs are key
Several technologies had to be in place: high-speed
Internet, MP3 formats, software that allows for
subscriptions, digital media players.
5 basic steps …
anyone can do this!
1.
2.
Record your content
Edit your content (add intros/outros, music,
delete your ums/uhs)
3. Upload the audio/video content to web server
4. Create your RSS feed pointing to your content
(include your “tags” -- file’s full address, title,
length, type, and description
4.5 (opt.) validate your feed
(http://rss.scripting.com)
5. Submit your podcast episode to podcast
directories
Some statistics
• Pew Internet & American Life Project:

More than 22 million US adults own an iPod
or other MP3 player (13% of men and 9% of
women)

20% of the 18- to 28-year-old market owns an
iPod or other MP3 player

29% of the people who own an iPod or MP3
player have downloaded a podcast

This translates to 6 million U.S. adults who
have downloaded podcasts.
More Statistics


Forrester Research expects 12 million
households to be regular podcast listeners
by 2010.
Tony Perkins (AlwaysOn): for the average
21-year old kid (which is the heart of
IMers), 62% of content read on line is
generated by someone they know.
How is Podcasting being
Used?
• Hobbyists
• Academics - podcasting the classroom
• Musicians - myspace, MTV, pumpaudio
• Film-makers - independent film distribution
• News organizations
• Sports/entertainment organizations
• “Traditional” Businesses
Podcasts in Traditional
Companies
• Internally - Employee communications,
•
training, HR, morale
Externally


Consumer-focused podcasts (like radio
shows) provide product advertising/education.
Business-focused podcasts – marketing tools
for businesses of all types
Overview of Legal Issues
• Copyright
• Right of Publicity
• Trademark
Copyright
• Copyright protects creative expression.
• Provides the © owner exclusive rights to
•
•
•
control certain activities in relation to a
creative work.
Constitutionally based (Art. I, §. 8, Cl. 8)
The “engine of creativity”.
A restriction on speech -- in careful
balance with the First Amendment.
Examples of ©’d Works
Used In Podcasts
•
•
•
•
Texts (displayed, read aloud, etc.)
Still Images (displayed)
Music (performed, intros/outros)
Video images & audio-video content (performed/
displayed)
•
Interviews of others
© Owner’s Rights
(§106 Exclusive Rights)
• reproduction
• distribution
• public performance
• public display
• prepare derivative works
Do I Need Permission?
Podcasters need permission, except when
they:
1. Use a fact, idea, theory, slogan or short
phrase
2. Use works in the public domain
3. Use US government works
4. Make a “Fair Use”
5. Use “Podsafe” Content
6. Use works in certain educational settings
Facts/ideas - not protected
• Copyright Act excludes any "idea
procedure, process, system, method of
operation, concept, principle, or discovery
regardless of form in which it is described,
explained, illustrated, or embodied" from
•
protection (get a patent!)
Examples of unprotectable facts/ideas
(news articles, recipes, stock characters in
a book)
© Duration and Public domain
•
•
Copyright is not forever, but it is for a
very long time.
4 main ways a work may enter the public
domain:
1.
2.
3.
4.
Expiration of the term (published works pre1923)
© protection for the work improperly maintained
(pre-1989 only)
Unpublished work w/ special rules
Dedication by author/rights holder
Public Domain - exception
•
•
Public
domain
works
may
be
incorporated into another work that is
copyright-protected.
Examples:
1.
2.
3.
Peter Pan
Slavish photographs of PD Mona Lisa vs.
photographs of a PD statue
Text of book in PD vs. later editions not
protected; translations of PD books may also still
be protected)
US government works
• Works created by a US government
employee or officer, as part of their official
duties, are not protected by copyright.
• Federal and state statutes and judicial
opinions are not protected by copyright.
• Extends only to federal officials and also,
only to employees.
Fair Use
•
•
Copying any protected material for a limited and
“transformative” purpose, like criticizing,
commenting, parodying, news reporting,
scholarship or research.
Four factors:
1.
2.
3.
4.
•
Purpose/Character of the use
Nature of the copyrighted work
Amount and substantiality in comparison to overall work
Effect on market for copyrighted work
2 misconceptions: acknowledgement &
disclaimers are not enough.
New Resources
for Fair Use
•
•
•
•
Duke comic book (http://www.law.duke.edu/cspd/comics/)
NYU’s Brennan Ctr - “Will Fair Use Survive?”
(http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf)
Center for Social Media - best practices
(http://centerforsocialmedia.org/fairuse)
Stanford’s Fair Use website:
(http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/cha
pter9/9-b.html)
PODSAFE CONTENT
(mostly music, but video is also now available)
•
•
•
•
•
•
•
Creative Commons works (but read the license!)
www.magnatune.com
http://music.podshow.com/
http://www.podsafeaudio.com/
ASM: http://www.musicpodcasting.org/
iPodArmy:http://www.ipodarmy.com/2005/06/ho
w-to-find-podsafe-music/
And others -- search for “podsafe” + the type of
content you seek
Is a Podcast Really a
“Performance”?
• US Copyright Office says: “unsettled”
• No court has squarely addressed the issue
• Commentators suggest that non-
•
simultaneous transmissions (like
podcasts) probably are not “public
performances”
Aggregators (ASCAP, BMI, SESAC) assert
that any Internet transmission (whether
streaming or download) is a “public
performance”
Getting a License
• If your use does not fall within the
exceptions discussed above, you will need
a license from the author of the work (text,
images, music or video).
Types of © works
(§ 103 Copyright Subject matter)
•
•
•
•
•
•
literary works (texts)
musical work (the lyrics/music)
sound recording (audio reproduction of
music)
motion pictures and other a/v works
(movies, films, animation)
dramatic works (screenplay, scripts, music)
sound recording (soundtrack)
© Owner’s Rights
(§106 Exclusive Rights)
• reproduction
• distribution
• public performance
• public display
• prepare derivative works
Licenses - text/written content
• If you use copyrighted texts, and the use
does not fit one of the exceptions
previously discussed, you need a license
from the author or rights-holder to
reproduce the text on-line, to read
(“perform”) or “display” the text in your
podcast.
Licenses Needed to Put ©’d
Music & Video in a Podcast
1.
2.
3.
4.
if your podcast includes music, then you
need a license for:
using the underlying musical work (Harry
Fox)
performing the musical work (ASCAP,
BMI, SESAC) (unresolved question!)
playing a sound recording of a
performance
reproduction of a sound recording in the
podcast (record companies)
Licenses needed (cont’d)
if your podcast includes video, then you may also
need:
5. a “sync” license (for synchronizing music to
video) and
6. a “videogram” license (for selling the podcast
to the public).
Right of Publicity
ROP in Wash. - What is it?


Every individual or personality has a
property right in the use of their name,
voice, signature, photograph or likeness.
(see RCW 63.60.010)
Individual vs. Personality:


For an “individual” (a natural person) rights
continue for 10 years after death
For a “personality” (any individual whose
“publicity” has commercial value) rights
continue for 75 years after death.
ROP in Wash.: Infringement


“Any person who uses … a[n] individual's or
personality's name [etc.] on or in goods …
entered into commerce in this state [or for
advertising or fund raising], or if any person
disseminates … such advertisements in this
state, without written or oral, express or implied
consent … has infringed such right …” (see
RCW 63.60.050)
Does not matter whether for profit or not for
profit.
ROP in Wash. - Liability


Anyone who infringes “shall be liable for
the greater of” $1,500 or actual damages
and “any profits that are attributable to the
infringement and not taken into account
when calculating actual damages.” (see
RCW 63.60.060)
In addition: injunctions, impoundment,
destruction, and attorneys fees
ROP in Calif.
• Any person who knowingly uses another’s
•
name, voice, likeness “in any manner” on
or in a product (or for advertising a product
or service) without prior consent “shall be
liable” (CCP § 3344)
Liable for actual damages (min. $750) +
profits resulting from the injury, punitive
damages, and attorneys’ fees
ROP in Calif. -- Statutory
Exceptions
•
•
•
Use of likeness of an employee where image is
incidental (not essential) = rebuttable
presumption that failure to obtain consent was
not a knowing violation of §3344
For use in connection with news, public affairs,
or sports broadcast or account, or any political
campaign, consent is not required.
Not applicable against a news organization (etc)
that publishes the images/likeness, unless they
had knowledge that the use was unauthorized.
ROP & 1st Amendment

For public figures, the podcaster can use
the name/likeness so long as it is done (1)
in a truthful way and (2) does not imply a
false endorsement of the
podcaster/podcast by the public figure.
Legal implications


No right of publicity decisions based on a
podcast to date
Like blogging issues, how §3344(d)
applies to a podcast -- e.g., whether it’s a
news, public affairs, or sports broadcaster
account, or any political campaign-remains to be determined.
Trademark Issues
Two Flavors

Infringement


Likelihood of confusion standard
Dilution (famous marks only)


Tarnishment (promoting a product that is
considered offensive -- e.g., “Disneyland” for
X-rated podcast)
Blurring (when consumers blur two
companies in their minds -- e.g. “Nike
Hemorrhoid Discussion Group”
When permission is NOT
needed



Like in traditional media and practice (in
the off-line world), “nominal” or “editorial”
uses are permitted.
Comparative advertising uses also OK
No obligation to identify every mark as a
“registered” trademark.
Legal implications


Be cognizant, as in any advertising, how
the TMs owned by others are used.
Police use of a business’ trademarks, but
be careful not to overstep the rights
granted by TM law. (“For Dummies”
Example)
Predictions



Content distribution is changing rapidly - the
requirement of user interaction is growing
Podcasting is one of the first new technologies
that businesses are implementing quickly
Video podcasting will grow more rapidly than
audio podcasting or blogging, but only if
bandwidth opens up, remains available, and if
technologies bring the content to the devices we
carry (most likely cell phones)
Conclusions



The current copyright system will need to deal
with these new pressures.
Organizations like CC and others that provide
options will test new ways of handling content.
Charlene Li’s (Forrester Research), three
predications regarding Social Computing:



(1) innovation will shift from top-down to bottom up
(2) value will shift from ownership to experience
(3) power will shift from institutions to communities
(http://blogs.forrester.com/charleneli/2006/02/forrsters_socia.html)
FOR MORE INFORMATION
COLETTE VOGELE
Vogele & Associates
580 California St., Suite 1600
San Francisco, CA 94104
Tel: 415.751.5737
Email: colette@vogelelaw.com
Web: http://www.vogelelaw.com
All content in this presentation is licensed under the Creative Common’s AttributionNonCommercial-ShareAlike 2.5 License. Please attribute this presentation as follows:
“Podcasting & Law: Seattle University Law School
© 2006 Vogele & Associates.”